Posts tagged Constitution

Re: @Jeremy Weiland: Is there any liberal argument for #hcr that even acknowledges we have a Constitution?

You have a Constitution? Sorry to hear it. But you must’ve known that this is the kind of shit you end up with when you have Constitutions. That’s why I got rid of all mine years ago. Liberty is a social relationship, not a paper document.

(For what it’s worth, the official party line is that it’s authorized under the Interstate Commerce Clause. Is it really? Who cares? Either the Interstate Commerce Clause does authorize this massive corporatist screwjob, or else it has proven that it can do nothing effectual to prevent it. In either case, it is unfit to exist.)


J. Croft,

I’m more or less entirely with you as a matter of principle. (Like you, I believe in an unconditional right to keep and bear arms; like you I believe that the Constitution was a tyrannical usurpation in its conception, and that appealing to one’s favorite interpretation of the Constitution to somehow safeguard liberty is a sucker’s bet; like you I believe that the standing army and the (increasingly overtly militarized) standing police forces are one of the most toxic political forces in America today. But there are a couple of historical claims you make along the way which utterly baffle me.

You write: See, the backbone of the nation’s defense was on each of us arising out of necessity with arms and the skills to handle them well. They certainly did rise-whether the threat came from British Empire during the Revolutionary War; Mexico when it tried to conquer the Midwest during the 1840’s; …

I’m not aware of any point during the 1840s when Mexico “tried to conquer the Midwest” or when a Mexican invasion was resisted by citizen militia. Are you referring to the U.S. invasion of Mexico (1846-1848)? If so, then what attempt to “conquer the Midwest” was there, at any point? There was fighting between Mexican and U.S. soldiers, after professional soldiers in the standing U.S. army were deliberately moved, as an act of provocation, into the disputed territory between the Rio Grande and the Nueces river; at most, the Mexican end of the fighting was intended to recapture a small strip of southern Texas. In response the U.S. government–with the nakedly imperialistic President Polk at the helm–launched a massive invasion of Mexico, carried out not by militia, but by professional soldiers in the standing U.S. Army (cavalry and infantry) and Navy, which proceeded to invade Mexico, conquer it, seize its capital, and to seize 1/2 of Mexico’s territory, most notably Alta California and Nuevo Mexico (now California, Nevada, New Mexico, Arizona, Utah, part of Colorado, etc. The radical libertarians in America at the time — William Lloyd Garrison; Henry David Thoreau — opposed the war at the time, rightly seeing it for what it was — an imperial war, orchestrated by the expansionist Slave Power. This was no militia resistance; for the U.S.’s part it was no resistance at all. It was an act of military aggression, carried out more or less explicitly for the purpose of imperial conquest, and sold to the public with a combination of lies, equivocation, and by-jingo brutality.

Secondly, you write: Immigration was encouraged; millions of Europeans were shipped in who were pig ignorant of what Freedom is. Eventually their mentalities, formed by centuries of despots wielding absolute power over them, made more radical social controls a viable option. Controls… like the banning of guns in New York with the Sullivan Act in 1916.

This strikes me as bizarre. Have you read the editorials, speeches, etc. that led up to the passage of the Sullivan Act? The people arguing for the Sullivan Act were more or less universally anti-immigrant, and justified the gun grab quite explicitly as a way of keeping guns out of the hands of immigrants. For example, here’s the New York Times in 1905, on a forerunner concealed-carry licensing law, then being mooted in the state Assembly: “Such a measure would prove corrective and salutary in a city filled with immigrants and evil communications, floating from the shores of Italy and Austria-Hungary. New York police reports frequently testify to the fact that the Italian and other south Continental gentry here are acquainted with the pocket pistol, and while drunk or merrymaking will use it quite as handily as the stiletto, and with more deadly effect. It is hoped that this treacherous and distinctly outlandish mode of settling disputes may not spread to corrupt the native good manners of the community.”

The reason the Sullivan Act was passed was not because immigrants accepted or supported it. The reason it was passed was because the immigrants targeted (mainly eastern European and Italian immigrants) generally could not vote, and had no political power in the city machines; whereas the cities nativists, whipped up by anti-immigrant rhetoric, decided that they were willing to accept an unprecedented expansion of government power, government gun-grabs, and the beginning of police-state regimentation, as the price for government control over the demonized immigrant population.

I agree with you about the tyrannical nature of so-called “gun control,” and the tyrannical nature of the system which produced it. I agree with you about what needs to be fought for. But I think that it’s very important that, historically speaking, we keep the real enemy in our sights.

Re: Gene Callahan Joins the Smearbund


But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.


In a perfect world, in a world of the theoretical, of course he is correct.

Actually, part of Spooner’s point, if you’re paying attention, is that here in the real world, the strategy of using paper constitutions to limit the invasiveness of governments is demonstrably impractical. There’s little if any evidence that his views on the theoretical, in-principle relationship between the natural law and the U.S. Constitution changed substantially between The Unconstitutionality of Slavery and No Treason No. 6. (For details, see Roderick Long’s paper.) What did change was that he became convinced, in light of the recent triumph of bayonet-point Unionism, that it was practically useless to go on citing the Constitution as a basis for attacking tyrannical laws, and that a new strategy was called for. Hence the shift to arguments explicitly based on natural law and directed against all forms of government authority, including governments based on paper constitutions.


Far better for us all if these great men would have ENGAGED more and FOUGHT more than they did.

Frederick Douglass:

But I fancy I hear some one of my audience say, it is just in this circumstance that you and your brother abolitionists fail to make a favorable impression on the public mind. Would you argue more, and denounce less, would you persuade more, and rebuke less, your cause would be much more likely to succeed. But, I submit, where all is plain there is nothing to be argued. What point in the anti-slavery creed would you have me argue? On what branch of the subject do the people of this country need light? … The time for such argument is past. At a time like this, scorching irony, not convincing argument, is needed. O! had I the ability, and could I reach the nation’s ear, I would, to-day, pour out a fiery stream of biting ridicule, blasting reproach, withering sarcasm, and stern rebuke. For it is not light that is needed, but fire; it is not the gentle shower, but thunder. We need the storm, the whirlwind, and the earthquake. The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled; the hypocrisy of the nation must be exposed; and its crimes against God and man must be proclaimed and denounced.


I can’t prove it, but I’d wager you anything you like, at any odds, that If we took a plebiscite on whether people wished to live under the Constitution or not, that they would vote in the affirmative, and so would the rest of the world.

Well, so?

I can’t for the life of me see what this has to do with Spooner’s explanation of the criminality of government legislators, judges, executives, etc. My point is precisely that Spooner’s argument have nothing at all to do with the outcome of majoritarian voting games.

As for your claim that the same cabal of usurpers who, under the auspices of the United States Constitution, claimed the right to pass fugitive slave laws and crush the Whiskey Rebellion by force of arms, somehow believed that the Constitution allowed for a right of individual dissenters to freely withdraw from the political obligations that they sought to impose (!), I guess your understanding of the Constitutionalists is different from mine. As it is from the understanding of Spooner, who never made such a risible claim about the motives or expectations of the minority faction who wrote and signed off on the Constitution. (He did believe that the legal meaning of the text sometimes conflicted with their motives and expectations in writing it; but that’s an entirely different claim.)


Yeah, [enslaving hundreds of people] was pretty shitty of Jefferson. He was also a hypocrite, a rapist, and President of the United States, all of which I think were pretty shitty of him. What’s your point?


As much as any single man in history, he was the force, a goddamned genius of liberty, the POWERHOUSE behind what freedoms we DO have today.

Maybe so. Certainly, if the dude is the best there is on offer by way of concrete historical achievements towards liberty, then I guess that could help explain why we’re in such a sorry state today.

In any case, my point is that the presumption that anarchists would just have to recognize and respect the obvious merit of a slaver, rapist, hypocrite, and President is a pretty weird presumption from which to start your argument.


You seem to be presuming that trying to get somebody elected President of the United States is the only way to get “things [to] improve”. But it’s not the only way. It’s not the best way, either, or even a particularly plausible way. Or, at least, if you think that it is, that’s certainly not a self-evident truth that you can just presuppose. It’s a tendentious claim that you’ll have to justify with some kind of argument.


At least you qualified this with the words “seem & “presuming”, otherwise that’s exactly what you would have been doing. The argument you suggested for me; that WOULD be a pretty stupid argument I made, eh?

I charitably suggested that you might be presupposing that premise, or something like it, because if you’re not presupposing that getting Ron Paul elected President is the only way to improve the situation, all you have the following argument:

  1. These folks here aren’t contributing to efforts to get Ron Paul elected President. (given)
  2. Therefore, these folks here aren’t contributing to improving the political situation. (conclusion)

… which is a flat non sequitur. As yet there’s no reason at all to suppose that (2) follows from (1). If you add the extra premise I suggested, then you’ll have:

  1. Getting Ron Paul elected President is the only way to improve the political situation. (implicit)
  2. These folks here aren’t contributing to efforts to get Ron Paul elected President. (given)
  3. Therefore, these folks here aren’t contributing to improving the political situation. (conclusion)

Not all of these premises are true (the implicit premise 0 is clearly false), but it is at least formally valid; if all the premises were true, the conclusion would have to follow.

If I was being too charitable, well, I’m sorry. I take it back. If you’re not actually presuming what I said you seem to be presuming, then your conclusion isn’t supported by question-begging premises; it’s not supported by anything at all.


Doctor Paul, inspired THOUSANDS of people like me to go out and fight these degenerates.

Yep. Let’s all measure the inputs to the allocation process instead of measuring the outputs.

But, well, I guess when you’ve got a prior commitment to methods that require enlisting tens of millions of other people and harnessing tens of millions of dollars, which don’t even operate but for a few months out of every four-year cycle, and which operate on winner-take-all rules that require you to win just about everything before you can win just about anything — methods which, in short, have no plausible hope of even minor progress on the margins for decades to come — measuring the inputs is about all you can do. There are no outputs to measure, and there won’t be in the forseeable future.

Re: The Confederacy was pure evil

“But in terms of the Constitution, the CSA was perhaps less evil than the North, wouldn’t you agree.”

I can’t answer for Anthony. But I certainly wouldn’t agree. Why in the world would anybody agree? The Confederate Constitution was deliberately modeled on the U.S. Constitution, and replicates nearly all of its defects. To these it adds new defects, in particular explicit new protections for “the right of property [sic] in negro slaves,” in particular explicitly forbidding any “impairment” of this so-called right by the confederate Congress (Art. I Sect. 9), explicitly protecting Confederate slaveholders’ ability to pass through or stay in other Confederate states with their slaves (Art. IV, Sect. 2), thus preventing any effective emancipation at the state level, and explicitly requiring that “the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected be Congress and by the Territorial government” in all newly-acquired territories (Art. IV, Sect. 3). Alexander Stephens, famously, described the changes (which he regarded as an improvement) as putting “to rest, forever, all the agitating questions relating to our peculiar institution—African slavery as it exists amongst us—the proper status of the negro in our form of civilization.”

I can find no particular at all in which the Confederate Constitution is preferable, from a libertarian standpoint, to the existing United States constitution, with the possible exception of its ban on protective tariffs (Art. I, Sect. 8). But the Confederate constitution does allow for revenue tariffs and other taxes, and the Confederates at the time happily implemented every sort of tax, cartelizaton, and nationalization during the few years of their independence. In any case, compared to the massive and obvious evil of perpetuating chattel slavery, swapping on set of taxes for another set of taxes seems like pretty small potatoes.

So what exactly is a libertaran supposed to find “perhaps less evil” in the Confederate constitution?

“And in fact the CSA Constitution banned the slave trade”

Obviously it did not; they went on trading slaves. It did forbid the transnational slave trade (except with the slaveholding states that remained in the Union), which is something different.

Nor is it something especially noble. The prohibition on the transnational slave trade in 1808 was pushed through originally by the Virginian slavers. Not out of any moral scruple about trading slaves, which they continued to do with gusto, but rather because certain powerful slavers profited greatly from the internal slave trade, even while plantation agriculture became increasingly unprofitable for the longer-settled parts of the South. The basic impetus behind both the 1808 ban and the Confederate ban was not emancipatory; it was just another damn protectionist scheme.

Lex iniusta

The only warrant for the judiciary to strike down state laws on any subject is if they attempt to exercise a power that the federal Constitution has removed from the states or if they exercise a power they would generally possess in a manner that’s illegitimate because it infringes on constiutionally-guaranteed rights ….

What if the state law is unjust?

Do you think that judges have a duty to collaborate in the enforcement of unjust laws? If so, why? If not, wouldn’t it follow that they can rightfully set them aside, whatever the United States Constitution may or may not say on the matter?